Wrongful Death Lawsuits in Illinois

Illinois, like every other state, has a set of laws that apply to wrongful death claims. We'll look at several key aspects of these laws, including who is eligible to file a wrongful death claim in Illinois, what types of damages might be available, and the time limits on filing this type of lawsuit in the state's civil courts.

How Does Illinois Law Define "Wrongful Death"?

Under Illinois law, a wrongful death occurs when a person dies as a result of another party's "wrongful act, neglect or default." A wrongful death claim can be brought in any situation where the person could have brought a personal injury claim had he or she survived. (740 Ill. Comp. Stat. 180/1 (2021).) So, it can be useful to think of a wrongful death case as a type of personal injury lawsuit, in which the injured person is no longer available to pursue his or her own case in court. Instead, another party must step in and file a wrongful death claim on behalf of the deceased person.

Many types of events can be the basis for a wrongful death claim, including:

• negligence-based incidents (such as car accidents)
• medical malpractice, or
• intentional acts (including crimes).

Who Can File a Wrongful Death Claim in Illinois?

Some states allow the deceased person's family members to file a wrongful death lawsuit. In Illinois, however, a wrongful death claim must be filed by the personal representative (sometimes called the "executor") of the deceased person's estate. If the deceased person died without appointing a personal representative in his or her estate plan, the court may appoint a personal representative. The personal representative is responsible for pursuing the wrongful death claim, as well as carrying out other tasks related to the estate.

What's the Difference Between a Wrongful Death Case and a Criminal Homicide Case?

As in other types of personal injury lawsuits, the defendant's liability in a successful wrongful death case is expressed solely in terms of financial compensation ("damages") that the court orders the defendant to pay to the deceased person's survivors. That's one big difference between a wrongful death lawsuit and a criminal homicide case, where a conviction can result in jail or prison time, fines paid to the state, probation, and other penalties.

Another big difference between a criminal prosecution for homicide and a wrongful death civil lawsuit: In criminal court, the accused's guilt must be established "beyond a reasonable doubt"—a very high bar for the prosecution to clear. In a civil lawsuit, the defendant's liability must be shown only "by a preponderance of the evidence," meaning it's more likely than not that the defendant is responsible for the death. It is possible, though, for a single act to result in criminal charges and a wrongful death claim: A defendant can be sued for wrongful death in civil court, while facing criminal charges related to the same death.

Learn more about proving liability in a wrongful death case.

What Types of Damages Are Possible in an Illinois Wrongful Death Case?

In a successful wrongful death lawsuit, the court will award "damages"—the plaintiff's claimed losses—to the deceased person's survivors or estate. In Illinois, damages are paid to the deceased person's surviving spouse and next of kin according to their level of dependency on the deceased person, as determined by the court. (740 Ill. Comp. Stat. 180/2 (2021).)

In Illinois, damages are intended to compensate the deceased person's survivors not only for the financial losses associated with the death but also for intangible losses suffered by the family. Some common types of damages awarded in Illinois include money for:

• loss of financial support the deceased would have provided, including lost wages and benefits
• loss of consortium (meaning the loss of society, companionship, and the sexual relationship the deceased would have had with his or her spouse)
• loss of instruction, education, and moral training the deceased would have provided to any surviving children, and
• survivors' grief, sorrow, and mental suffering.

Some states cap the amount of damages that can be awarded to a plaintiff in a wrongful death suit, but Illinois currently has no such limit. Learn more about damages that might be available in a wrongful death case.

How Long Do I Have to File a Wrongful Death Lawsuit?

Wrongful death lawsuits must be filed within a specific period of time, set by a law known as a statute of limitations. In Illinois, the statute of limitations for most wrongful death claims is two years from the date of the person's death. If the person died as a result of "violent intentional conduct," the lawsuit must be filed within five years of the date of the death.

A wrongful death claim may be brought one year after the criminal case is completed if the person who caused the death was charged with any of the following crimes in relation to the death:

• first- or second-degree murder
• intentional homicide or voluntary manslaughter of an unborn child
• involuntary manslaughter or reckless homicide
• involuntary manslaughter or reckless homicide of an unborn child, or
• drug-induced homicide.

If the case is not filed within the applicable time limit, the court may refuse to hear it at all. (740 Ill. Comp. Stat. 180/2 (2021).)

If you're considering a wrongful death lawsuit in Illinois, it's a good idea to consult a personal injury attorney. Wrongful death cases can be complicated, and an experienced lawyer can explain how the law might apply to your specific situation.